Big win for Metrorail workers as CCMA orders R35.5m pay-out

Carin Smith

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The Passenger Rail Agency of SA (Prasa), trading as Metrorail Western Cape had been ordered by the Commission for Conciliation, Mediation and Arbitration (CCMA) to pay a total of about R35.5m to almost 200 of its workers.

Tzvi Brivik, attorney for the applicants, told Fin24 on Monday that the original applicants were 166 protection officers. They were later joined in the case by about 30 outsourced vehicle drivers. The applicants have been in the employment of Metrorail Western Cape on a series of fixed-term contracts.

Labour law amendments, however, entail that an employer may employ an employee on a fixed-term contract or on successive fixed-term contracts for longer than three months only under certain circumstances. Either the nature of the work for which the employee is employed must be of a limited or definite duration or the employer must have a justifiable reason for fixing the term of the contract.

The law provides that an employee employed in terms of a fixed-term contract for longer than three months must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work unless there is a justifiable reason for different treatment.

The applicants were employed on a series of fixed-term contracts prior to 1 January 2015 and did not sign another contract after this time. Since 1 January 2015 their basic remuneration was adjusted and brought in line with the basic remuneration paid to their comparable counterparts who are "permanent" employees.

The applicants did not, however, receive the same benefits as that of their colleagues who are permanently employed. The applicants are not members of Prasa's provident fund and have not been given any bonus payments.

They wanted the CCMA to order Metrorail Western Cape to pay them the difference between what they were paid and are paid and what they would have been paid had they been treated as permanent employees.

Metrorail Western Cape argued that it is in a precarious financial and infrastructure position due to lower ticket sales and vandalism. It claimed the CCMA ordering compensation to be paid to the applicants would jeopardise Metrorail Western Cape's finances and probably cripple it, because there are about 378 other employees who were previously employed in terms of fixed-term contracts who might also then want to approach the CCMA.

On behalf of the applicants it was argued that Prasa's finances had no role to play in this case. On behalf of the applicants it was also argued that there had been reports - including by the Auditor General - that indicate the financial woes of Metrorail Western Cape were due to "mismanagement" and the employees should not be punished for that.

CCMA commissioner Daniel du Plessis stated in his ruling that, once an employee is deemed to have become "indefinitely employed", he or she was from that date onwards entitled to be treated on par with his or her colleagues. Failure to do this would constitute an unfair labour practice or could even amount to discrimination.

Du Plessis found that from the date the applicants became "permanent", they became entitled to be members of Prasa's provident fund and to receive bonus payments - including bonuses they did not receive previously.

Du Plessis found that Metrorail Western Cape had not shown a justifiable reason for the difference in treatment of the applicants.

Because the costs of his retrospective order was huge, and bearing in mind there might be cash constraints, Metrorail Western Cape was ordered to pay the compensation in three equal instalments to each applicant. The amount due to each individual was calculated separately.

Prasa must also immediately take the necessary steps to ensure that each applicant becomes a member of Prasa's provident fund. Each applicant must also be paid a bonus if bonuses were to be paid in future.

According to Brivik, the substantial amount which Prasa had been ordered to pay includes a 13th cheque as well as contributions to the provident fund.

“Our clients, who were not represented by a union in this dispute, are extremely satisfied. Now at least their position within the company is certain and the losses which they suffered have been made up," said Brivik.

* News24 reported earlier that officials are trying to establish the cause of a fire at Cape Town station that destroyed a number of train units – leaving an estimated R30m cost of repair, Prasa said on Sunday.